# M/s Himalaya Sahkari Awas Samiti Ltd., Ghaziabad v. U.P. Awas Vikas Parishad Lucknow & Anr

- **Citation:** (2022) 4 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** First Appeal No. 374 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-himalaya-sahkari-awas-samiti-ltd-ghaziabad-v-u-p-awas-vikas-parishad-48423
- **Pages:** 6

## Headnote

Civil Law - U.P. Co-operative Society Act,
1965- whether demanding interest at the
rate of 18% and penal interest at the rate
of 21% is bad - Held - rate of interest
would be 8% (Para 17)

Two acres plot was given to the appellant -
appellant had to make payment by way of
installments - appellant deposited the amount
for five years but could not pay installments -
respondents claimed 18% rate of interest and
21% as penalty interest for unpaid amount - In
the allotment order it was not fixed what
additional interest would be liable to be paid by
the society if the the amount of installment was
not deposited within stipulated period of time -
society already deposited a sum which is more
than 50% of the cost of land - Held - appellant -
plaintiffs would be obliged pay the remaining
amount with 8% rate of interest.

Allowed. (E-5)

List of Cases cited:

## Text

4 All. M/s Himalaya Sahkari Awas Samiti Ltd., Ghaziabad Vs. U.P. Awas Vikas Parishad
 Lucknow & Anr.
179
before the authority concerned. Even if an
order has been passed under Section 3 (1)
of the U.P. Act No. VIII of 1971, the person
concerned has a right of appeal under
Section 6 of the aforesaid Act.

24. In view of the aforesaid, since the
nature of the general allegations are
provided in the impugned order. This Court
under extraordinary jurisdiction decline to
interfere with the impugned order at this
stage and liberty is granted to the petitioner
to approach the authority concerned for
appropriate redressal.

25. It is made clear that we have not
addressed the issues raised by the petitioner
on the merit of the allegation in the
impugned order dated 3rd July, 2020 and it
shall be open for the authority concerned to
independently apply its mind to the facts
and circumstances and material available
and come to a logical conclusion in
accordance with law.

26. Accordingly, the writ petition
lacks merit and is dismissed with liberty to
the petitioner to approach the authority
concerned in accordance with law.
----------
(2022)04ILR A179
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal No. 374 of 2019

M/s Himalaya Sahkari Awas Samiti Ltd.,
Ghaziabad ...Appellant
Versus
U.P. Awas Vikas Parishad Lucknow & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Vishnu Singh, Sri Anil Kumar Rai, Sri
Greesh Kumar Malviya

Counsel for the Respondents:
Sri Chandra Shekhar Singh, Sri Anand
Kumar

Civil Law - U.P. Co-operative Society Act,
1965- whether demanding interest at the
rate of 18% and penal interest at the rate
of 21% is bad - Held - rate of interest
would be 8% (Para 17)

Two acres plot was given to the appellant -
appellant had to make payment by way of
installments - appellant deposited the amount
for five years but could not pay installments -
respondents claimed 18% rate of interest and
21% as penalty interest for unpaid amount - In
the allotment order it was not fixed what
additional interest would be liable to be paid by
the society if the the amount of installment was
not deposited within stipulated period of time -
society already deposited a sum which is more
than 50% of the cost of land - Held - appellant -
plaintiffs would be obliged pay the remaining
amount with 8% rate of interest.

Allowed. (E-5)

List of Cases cited:

1. Swasthya Enclave Sahkari Awas Samiti Ltd. &
anr.Vs D.M. Ghaziabad & Others WRIT - C No. -
13223 of 2002

2. UP Avas Evam Vikas Parishad Vs. Swasthya
Enclave Sahkari Awas Samiti Ltd. & ors. Civil
Appeal No.9088 of 2015

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Vishnu Singh, learned
counsel for appellant and Sri Chandra
Shekhar
Singh,
learned
counsel
for
respondent.
180 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This appeal under Section 96 of
Code of Civil Procedure, 1908 has arisen
from judgment and decree dated 16.2.2019
passed by Additional Civil Judge ( Senior
Division),
Court
No.6,
Ghaziabad
dismissing the suit being original Suit
No.679 of 2014 of the plaintiff. The parties
are
referred
as
plaintiff/appellant-
respondent/ defendant.

3. The brief facts as they are culled
out from the record and for deciding the
sole issue raised for on consideration
namely whether demanding interest at the
rate of 18% and panel interest at the rate of
21% is bad and the dismissal of suit
challenging this demand is bad in view of
decision of this High Court in Writ Petition
No.15950 of 2002 decided on 10.8.20211
and SLP decided by the Apex Court in
Civil Appeal No.9088 of 2015 (UP Avas
Evam
Vikas
Parishad
Vs.
Swasthya
Enclave Sahkari Awas Samiti Ltd. and
other) decided on 16.12.2016 are that the
appellant
is
the
cooperative
society
registered under U.P. Co-operative Society
Act, 1965 ( hereinafter refereed to as "Act,
1965"). The suit was instituted on the
ground that two acres plot was given to the
appellant
being
Plot
No.05
GH,
4
Vasundhara Ghaziabad on 19.11.1998 for a
sum of Rs.2,67,06,537/- . The appellant had
to make payment by way of installments. In
the year 2000, the respondent decreased the
area of the land making it to 1.25 acres and
that the price of the said area is
Rs.1,72,56,624/-. The plaintiff took the
possession of the said land on 21.6.2021
and the lease deed was also executed.

4. The main grievance in the plaint was
that the appellant deposited the amount for
five years but could not pay installments. The
respondents claimed 18% rate of interest and
21% as penalty interest for unpaid amount
which was challenged as being unreasonable
and against principles on which such interest
could be demanded. The appellant showed
readiness to pay 14% simple interest as
according to them the said rate of interest
which was approved by Hon'ble Supreme
Court in a similar matter where facts were
identical. A reference requires to be made to a
later judgment of this Court passed on
12.5.2015 in Writ C No.13223 of 2002 (
Swasthya Enclave Sahkari Awas Samiti Ltd.
and Another Vs. D.M. Ghaziabad & Others)
wherein a stand was taken by the respondent
that grant of 14% rate of interest by the
Supreme Court should be granted. The court
refused the same as the said order of the Apex
Court was not to be treated as precedent. The
respondent was asked to convey whether they
still wanted to place reliance on their
statement of relying on the said judgment
which was refused.

5. It is submitted by learned counsel
that
the
case
of
Assistant
HNG
Commissioner, Ghaziabad and others Vs.
Shri Krishna Sahkari Awas Samiti Ltd. has
fixed the rate of interest to 14%. This fact
was brought to the notice of learned Judge
but the said finding is negatived.

6. The issue about demand of interest as
demanded
by
defendant
framed
was
answered against the plaintiff and suit was
dismissed.

7. Learned counsel for the plaintiff
has heavily relied on the decision in First
Appeal From Order No. 662 of 2004,
judgment dated 16.3.2004 wherein in
similar facts, 8% interest has
been
considered to be just and proper where 8%
rate of interest granted has attained finality.

8. Learned counsel for the appellant
has relied on the judgment of Supreme
4 All. M/s Himalaya Sahkari Awas Samiti Ltd., Ghaziabad Vs. U.P. Awas Vikas Parishad
 Lucknow & Anr.
181
Court in SLP ( CC) No. 2376 of 2012
decided on 13.3.2012 arising from FAFO
No.662 of 2004 and contended that similar
treatment be accorded to the plaintiff -
appellant herein but not granting the same
is bad in eye of law. This Court requested
the respondent to mediate or re-conciliate
but the proposal was rejected.

9. It is further submitted by counsel
for appellant that the Court below has
illegally reached to the conclusion that the
judgment and order dated 13.3.2012 passed
by Apex Court in SLP ( CC) No. 2376 of
2012
between
Assistant
H.N.G.
Commissioner, Ghaziabad and others Vs.
Shri Krishna Sahkari Awas Samiti Limited
is not binding precedent and the ratio of the
said judgment cannot be applied in the facts
and circumstances of the present case and
dismissed the suit.

10. It is submitted by counsel for the
appellant that the Court below has failed to
consider the ratio of judgment dated
13.3.2012 passed by Hon'ble Apex Court in
SLP ( CC) No. 2376 of 2012 between
Assistant
H.N.G.
Commissioner,
Ghaziabad and others Vs. Shri Krishna
Sahkari Awas
Samiti
Limited,
while
dismissing the suit of the plaintiff. It is
further submitted that the Court below has
also illegally reached the conclusion that
the plaintiff - appellant has not approached
the Court with clean hands. The said
conclusion of the Court below is illegal and
against the pleadings of the plaintiff as well
as the material evidence adduced by the
plaintiff available on record, hence the
findings recorded by the Court below are
vitiated by law and deserves to be set aside.
It is submitted by learned counsel for the
appellant that the plaintiff - appellant was
required to pay said amount in 8 quarterly
installments w.e.f. 01.10.1998. It is totally
wrong to assert that in case of installment,
the society was supposed to pay 8
installments of Rs.41,83,900/- each. The
allotment
letter
dated
19.11.1998
specifically provides that above mentioned
amount either by cash / cheque or draft
would be deposited in the Allahabad Bank,
Branch Vasundhara, Ghaziabad. In case the
amount of installment was not deposited
within stipulated period of time then from
the date of deposit of first installment, what
additional interest would be liable to be
paid by the society was not fixed. It is
further
submitted
that
an
amended
allotment
letter
dated
2.11.2000,
the
defendant Awas Vikas Parishad has reduced
the area of the plot in question from 2 acres
to 1.25 acres and the cost of the land has
also
been
reduced
to
the
tune
of
Rs.1,72,56,624/- only but strange enough
the repayment scheduled as provided in the
initial allotment letter dated 19.11.1998 was
neither changed nor amended in pursuance
of the amended allotment letter dated
2.11.2000 whereby the area and the cost of
the land allotted to the appellant - plaintiff
has been reduced and there is no new reschedule plan issued by the defendant -
respondent for assuring the payment of the
land in dispute. The society has already
deposited a sum of Rs.98,74,877/- upto
8.6.2001 which is more than 50% of the
cost of land. The possession of the
aforesaid allotted land was handed over to
the appellant society on 21.6.2001.

11. It is submitted by learned counsel
for the respondent that enhanced liability
fastened is just and proper. The rate of 18%
interest and 21% panal interest on plaintiff
has already been enhanced and the plaintiff
was obliged to pay the amount with interest
. The judgment of Supreme Court passed in
SLP (CC) No.2376 of 2012 ( Assistant
H.N.G. Commissioner, Ghaziabad and
182 INDIAN LAW REPORTS ALLAHABAD SERIES
others Vs. Shri Krishna Sahkari Awas
Samiti Ltd.) cannot apply to the facts of
this case.

12. For the reasons mentioned herein
below, we cannot concur with the judgment
of the Court below and it is bad on facts
and law.The amount of interest recoverable,
at any one time cannot exceed the principal
as per judgment in Dhondu v. Narayan,
(1863) 1 Bom HC 47. Law of Damdupat
says that a creditor is not entitled at any one
time to recover interest exceeding the
amount of principal. It doesn't say that a
creditor shall not in any case be entitled to
interest exceeding the principal.

13. The suit could not have been
dismissed. The reasonings and finding on
most of eleven issues are not only the
perverse but there is no discussion whether
there was any contract to the contrary by
and between the parties for demanding
18% interest and the panel interest would
be 21%.

14. The learned Judge has failed to
appreciate the fact that the Apex Court has
decided the appeal holding that rate of
interest would be 14% was in pursuance of
order passed in First Appeal From Order
No.662 of 2004 whereas this High Court in
Writ Petition No.13223 of 2002 a copy of
which is produced by way of additional
evidence under Order XXXXI Rule 27 of
the Cr.P.C.. The said judgment relies on the
Division Bench judgment passed on
10.8.2011 in Writ Petition No.15950 of
2002. The Division Bench headed by
Hon'ble Mr. Justice Krishna Murari (he was
then) was in the said decision granted 8%
rate of interest. If we apply it, can the
submission of counsel for the respondents
is accepted that the decision of Apex Court
be relied. The subsequent decision holds
the rate of interest as per repo rate would be
8% as the earlier judgment passed in Writ
Petition No.15950 of 2002, on similar facts
has attained finality as nothing has been
brought to our notice as to in the said
matters where the respondents are involved
and the interest at the rate of 18% on
delayed payment and 21% panal interest
has been quashed and the interest is fixed at
8%. This Court as in the year 2016 again
decided that the correct rate of interest
would be 8% as decided in Writ Petition
No. 15950 of 2002 but in our case we
would be obliged to follow the same, we
were taking a liberal view and hold that the
appellants would be liable to pay 14% rate
of interest, on the unpaid amount ( which
has been objected by the learned counsel
for respondents), till the amount is paid on
the basis that the appellants had prayed that
they may be permitted to pay balance
amount at the rate of 14% as per decision
of Apex Court not accepting this has
obliged us to decide the matter on merits
and rely on the Division Bench judgment
passed in Writ C No.13223 of 2002 on
12.5.2015 which reads as under :

" Heard Sri G.K. Singh, learned
senior counsel, assisted by Sri G.K.
Malviya, appearing for the petitioners,
learned Standing Counsel appearing for
the State respondent no.1 & 2 and Sri Shri
Kant, appearing for the respondent no.3.

By this writ petition, petitioner
has challenged the recovery proceedings
initiated at the instance of respondent no.3,
whereby
a
sum
of
Rs.2,58,87,731/-
including 21% interest on delayed payment
to the concerned respondent has been
claimed.

Learned counsel for the parties
do not dispute the fact that the dispute
involved herein stands adjudicated by a
Division Bench vide judgment dated
4 All. M/s Himalaya Sahkari Awas Samiti Ltd., Ghaziabad Vs. U.P. Awas Vikas Parishad
 Lucknow & Anr.
183
10.8.2011 passed in Writ Petition No.15950
of 2002. The said writ petition was
dismissed
by
making
following
observations:-

"16. Besides this, it is to be noted
that since this court has stayed the
impugned order dated 27.3.2002 passed by
respondent
vide
interim
order
dated
23.4.2002, therefore, in event of recovery
sought to be made from the petitioner as
intended by the impugned order dated
27.3.2002 or otherwise on the basis of fresh
decision in pursuance of our this order, in
that situation, we are of the further opinion
that on the amount sought to be recovered
only 8% simple interest per annum shall be
charged from the petitioner during the
period of pendency of instant writ petition
and/or till the fresh decision is taken as
directed by this court, such interest, in our
opinion would meet the ends of justice and
also balance the equity between the
parties."

In view of the above, this writ
petition also stands disposed of in the same
terms.

In the end, it was submitted by Sri
Shri Kant, learned counsel for respondent
no.3, that against the aforesaid judgment, a
special leave petition was preferred, wherein
interest payable was made 14% instead of
8%, vide judgment dated 13.3.2012, a copy of
which has been placed before us, where from
we find that Apex Court has held that this
order shall not be treated as precedent in
another identical matter. Moreover, perusal of
the judgment dated 13.3.2012 goes to show
that this is on the consent of the parties before
the Apex Court and since parties have not
consented before us, for disposal of matter
upon similar terms, we are not inclined to
pass said order. "

15. The earlier judgment will enure
for the benefit of the appellant herein and
we direct that 8% rate of interest would be
the interest. We direct the same to be paid
within 12 weeks from today. The appeal is
partly allowed . The respondent is directed
to first calculate the amount already paid by
the appellants herein towards the principal
amount and then calculate interest at the
rate of 14% and assign the statement to the
appellants herein within four weeks from
today. The appellants will have eight weeks
thereafter to deposit the amount, failing
which the respondents would be at liberty
to take legal proceedings as permitted
under law as it is seen that the appellants
have misused the liberty given time and
again.

16. We really obliged that the
respondents did not accept our proposal to
settle the matter and accept 14% rate of
interest. While going through the record,
we are covered by the later judgment
passed on 10.8.2021 in Writ Petition
No.15950 of 2002 which hold the fact that
the plaintiff has requested that they may be
permitted to pay 14% rate of interest is on
the
decision
of Apex
Court
which
according
to
the
respondent
is
not
applicable. The dismissal of the suit is
absolutely without any basis. There was no
contract for 18% rate of interest. The
Committee has also not given any reasons
why they are charging this high rate of
interest for this commercial transaction.
The suit could not have been dismissed as
the demand itself is without any reasons
against the mandate of law of Damdupat
and even against the principles of Indian
Contract Act.

17. We, therefore, are obliged to allow
the appeal and hold that the rate of interest
would be 8% as per the judgment granted
in Writ C No.13223 of 2002 dated
12.5.2015.
184 INDIAN LAW REPORTS ALLAHABAD SERIES

18. We set aside the order of the Court
below and decree the suit holding that the
demand is bad in eye of law. The appellant
-plaintiffs would be obliged pay the
remaining amount with 8% rate of interest.
Record and proceeding be sent back to the
Tribunal forthwith. Fresh modified decree
be passed.

19. We are thankful to learned counsel
for the parties for assisting the Court very
ably whereas we are pained to mention that
the respondent in one matter pressed into
service the order of the Apex Court
directing 14% whereas in this matter they
contended that it was in peculiar facts of
the case there are two matters where the
precedent was granting 8% interest.
----------
(2022)04ILR A184
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 612 of 2013

Deepak Bose ...Appellant
Versus
Shrabonee Bose ...Respondent

Counsel for the Appellant:
Sri Chandan Sharma, Sri Anand Kumar
Srivastava, Sushmita Mukherjee

Counsel for the Respondent:
Sri Ajay Kumar Srivastava, Sri Virendra
Kumar

Hindu Marriage Act,1955 - Section 13
1(ib)- Divorce - Desertion - Mental Cruelty
- Whether desertion without a reasonable
cause and without the consent of the
party
aggrieved
during
the
wedlock
amount to cruelty u/s 13 of the Hindu
Marriage Act ? - Held - long desertion and
separation of a spouse constitute mental
cruelty within the meaning of Section 131
(ib) of the Hindu Marriage Act - Where
there has been a long period of continuous
separation, it may fairly be concluded that
the matrimonial bond is beyond repair -
marriage
becomes
a
fiction
though
supported by a legal tie - In such like
situations, it may lead to mental cruelty
(Para 31, 32, 33)

Hindu Marriage Act, 1955 - Section 13 -
Divorce
-
irretrievable
breakdown
of
marriage - Grant of divorce on the ground
of 'irretrievable breakdown of marriage'
i.e. where the repair of broken marriage
becomes
impossible
-
Held
-
Hindu
Marriage
Act
does
not
provide
for
irretrievable breakdown of marriage as a
ground for divorce - High Court or any
other court has no power to grant a
decree of divorce u/s 13 of the Hindu
Marriage
Act
on
the
ground
of
irretrievable breakdown of marriage -
That power can only be exercised by the
Supreme Court under Article 142 of the
Constitution (Para 38, 40, 42)

Appellant (husband) and Respondent (wife)
married on 11.07.2001- Wife did not serve the
appellant's (husband) old, ailing mother &
exerted pressure upon the husband to forsake
his mother - respondent wife suddenly left her
matrimonial home on 22.11.2007 - Held -
separation between parties has been fourteen
long years after the respondent left the
matrimonial home - long separation of fourteen
years between parties would lead to an
inference of mental cruelty within the meaning
of Section 131 (ib) of the Hindu Marriage Act,
1955 - relationship between parties is extinct - it
is a dead marriage - divorce petition allowed -
marriage between the appellant and the
respondent dissolved forthwith.

Allowed. (E-5)

List of Cases cited:-

1. Savitri Pandey Vs Prem Chandra Pandey,
(2002) 2 SC 73